United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S
MOTION IN LIMINE REQUESTING THE COURT TO EXCLUDE DRU C.
GLADNEY, PH.D. AS AN EXPERT WITNESS OR STRIKE HIS TESTIMONY
Honorable Ronald E. Bush Chief U.S. Magistrate Judge
decision resolves Plaintiff's Motion in Limine Requesting
the Court to Exclude Dr C. Gladney, Ph.D., as an Expert
Witness or Strike His Testimony (Dkt. 89).
Jun Yu alleges that Defendant Idaho State University
(hereafter “Defendant” or “ISU”)
deliberately and unlawfully discriminated against him due to
his national origin in violation of Title VI of the 1964
Civil Rights Act, 42 U.S.C. §§ 2000d et. seq. FAC
¶ 353 (Dkt. 41). In this motion, Plaintiff seeks an
order excluding Defendant's expert Dr. Gladney as a
witness or striking his testimony and limiting the topics on
which he may testify.
to the Federal Rules of Evidence and Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), a trial judge
must ensure that expert testimony is both relevant and
reliable. Wendell v. GlaxoSmithKline LLC, 858, F.3d
1227, 1232 (9th Cir. 2017). Testimony is relevant if it
“logically advance[s] a material aspect of [a]
party's case.” Estate of Barabin v.
Astenjohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014)
(citation omitted). This is a “low” bar.
Messick v. Novartis Pharm. Corp., 747 F.3d 1193,
1196 (9th Cir. 2014) (citing Daubert v. Merrell Dow
Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)).
goal of the reliability inquiry is for district courts to
“play an active and important role as gatekeepers
examining the full picture of the experts' methodology
and preventing shoddy expert testimony and junk science from
reaching the jury.” Murray v. Southern Route
Maritime SA, 870 F.3d 915, 923 (9th Cir. 2017) (citing
Daubert, 509 U.S. at 595-97). More specifically, the
reliability inquiry “asks whether an expert's
testimony has ‘a reliable basis in the knowledge and
experience of the relevant discipline.'” United
States v. Wells, 879 F.3d 900, 933-34 (9th Cir. 2018)
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137,
149 (1999), with alteration omitted).
motion seeks (1) to strike the entire testimony of Dr.
Gladney under Federal Rules of Civil Procedure 26 and 37; (2)
to exclude Dr. Gladney as an unqualified expert under Federal
Rule of Evidence 702; and/or (3) to strike Dr. Gladney's
testimony in whole or in part as inadmissible under Federal
Rules of Evidence 702, 703, 704, 104, 402, and 804. The Court
will first address the issue of Defendant's disclosure of
Dr. Gladney as an expert and will then address the issue of
Dr. Gladney's qualification as an expert.
The Court Will Not Strike or Limit Dr. Gladney's
Testimony Under FRCP 26 or 37.
argues that Defendant's disclosure of Dr. Gladney as an
expert failed to comply with the requirements of Federal Rule
of Civil Procedure 26(a)(2)(B). He contends that Dr.
Gladney's curriculum vitae (“CV”) was not
current and that Dr. Gladney's expert report did not
attach (but did reference) an Exhibit B providing Dr.
Gladney's experience testifying in other cases in the
previous four years. He also challenges the completeness of
Dr. Gladney's report with respect to the opinions it
expresses and the bases for such opinions.
places certain requirements upon the details of an expert
witness disclosure. If a disclosed expert report falls short
of the requirements, the expert may not be allowed to testify
in whole or in part. Fed.R.Civ.P. 37(c)(1). However, such
sanctions do not apply if the party's failure was
substantially justified or harmless. Id. The party
facing the sanction has the burden of showing substantial
justification or harmlessness. Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir.
Court is not persuaded under Rule 26(a)(2)(B)(iv) that
Plaintiff has shown that Defendant failed to disclose
“the witness's qualifications, including a list of
all publications authored in the previous 10 years.”
Plaintiff's initial argument was that Dr. Gladney's
CV, which was provided in 2016, showed no publications since
2011. However, the first page of the CV indicates it was
current as of March 2015. The CV also discloses three
forthcoming publications, including one that was scheduled to
be published in September 2014. There is a cobbled overlap in
the dates of all of that, but nothing indicates that the
required information (as opposed to a particular date on
which the document may have been prepared) was not current as
to this particular detail at the time it was disclosed, and
therefore it does not run afoul of Rule 26 - at least as to
the detail of the witness's qualifications and
the Rule 26(a)(2)(B)(v) requirement was not met - that there
be a disclosure of “a list of all other cases in which,
during the previous 4 years, the witness testified as an
expert at trial or by deposition.” Defendant's
disclosure contains a reference to an “Exhibit B”
to Dr. Gladney's report that was to include such a list,
but there was no such list provided with the ...